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Pro Partner Referral Agreement


Las updated October 17, 2016.

 

THIS REFERRAL AGREEMENT (“Agreement”) is made and entered into between Boatsetter, Inc.

(“Boatsetter,”), a Delaware Corporation and

(“Pro Partner,”). (Each individually a “Party” or collectively referred to as the “Parties”)

WHEREAS​, Boatsetter provides an online service to facilitate charters of vessels between vessel

owners and persons wishing to charter vessels (“Service”); and,

WHERAS​, Pro Partner is in the business of offering vessels for charter to the public.

NOW THEREFORE​, in consideration of the mutual covenants and undertakings recited herein

and for other good and valuable consideration, the receipt and sufficiency of which is hereby

acknowledged, the Parties agree as follows:

1. Boatsetter Service. Boatsetter will use the Service to market Pro Partner’s vessel-chartering

services to Boatsetter customers via Boatsetter’s web-based site ‘Boatsetter.com’ (the “Boatsetter

Program”). Pro Partner hereby acknowledges, agrees and consents to the Boatsetter

Terms of Service

​which are fully incorporated herein by reference​. Pro Partner may use the

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Service to create individual online vessel profiles (“Profile(s)”) for each of its vessels and to

receive reservation requests (“Boatsetter Reservation Requests”) for charters of its vessels from

customers of the Boatsetter Program. Pro Partner also authorizes Boatsetter to create Profile(s)

for its available vessels, which will not be listed online without prior Pro Partner approval.

Regardless of whether the vessel Profile(s) are generated by Pro Partner or Boatsetter, Pro

Partner will be exclusively responsible for the content and approval of the Profile(s) including

setting the charter fee, cleaning fee, refueling fee and policy, and any other fees and policies for

charters of its vessels. All applicable fees and policies shall be listed in each vessel’s online

Profile(s).

2. Fulfillment of Boatsetter Reservation Request(s). ​Upon submission by a customer of a

Boatsetter Reservation Request on Boatsetter.com, an email detailing the Boatsetter Reservation

Request will be sent to:(1) the customer, (2) Boatsetter member support, and (3)the Pro Partner.

The email will notify the Pro Partner of the customer’s requested charter dates and the vessel

desired. Boatsetter will collect no fees, nor prepare any paperwork. Pro Partner will respond to

customer within 24 hours of its receipt of the email and, if a booking proceeds, will collect the

necessary fees and prepare all paperwork required for completion of the charter. Pro Partner

will fulfill Boatsetter Reservation Requests with its usual high standard of service. Pro Partner

shall use its own charter agreements and other business operations forms without imprinting the

Boatsetter service marks, logos or trade names (hereinafter the “Boatsetter Marks”) thereon.

3. Standard of service. Pro Partner acknowledges that superior customer service is essential to the

1 A copy of the Boatsetter Terms of Service can also be provided upon written request or can be found at

https://www.boatsetter.com/how-it-works/terms-and-conditions/

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reputation and integrity of Boatsetter. Pro Partner has sole responsibility for ensuring customer

satisfaction. Should a customer report an issue with Pro Partner to Boatsetter, Boatsetter will

promptly notify Pro Partner. Pro Partner shall within 24 hours of receipt of such notice contact

the complaining customer, provide a written response to Boatsetter, and make reasonable efforts

to promptly resolve all customer complaints.

4. Insurance; Waiver of Subrogation. Pro Partner shall procure and maintain at a minimum the

following insurance related to the charter and operation of its vessels throughout the Term of

this Agreement: (1) Hull and Machinery Insurance to the full extent of the value of the vessel(s);

(2) Marine Protection and Indemnity Insurance (including crew coverage for personal injury or

death, whether brought pursuant to the Jones Act, General Maritime Law, Unseaworthiness,

Vessel Owner Negligence, Maintenance and Cure or otherwise) in a minimum coverage amount of

$1,000,000 with a deductible not to exceed $10,000; (3) Commercial General Liability coverage

(with contractual indemnity coverage and in rem liability coverage but deleting the watercraft

exclusion) in a minimum coverage amount of $1,000,000 dollars with a deductible not to exceed

$10,000; and (4) Vessel Pollution Insurance in a minimum coverage amount of $500,000.

Boatsetter shall be named as an additional insured on all of the above described insurance

policies.

In addition, if Pro Partner has in place any insurance above and beyond that described in the

paragraph above Boatsetter shall be named as an additional insured on all excess insurance

policies maintained by Pro Partner. Pro Partner and Boatsetter agree to look first to the

aforementioned policies to cover any claims asserted which may be covered thereunder. Pro

Partner agrees that any coverage maintained by Boatsetter shall be non-contributing and

considered excess above these policies.

Pro Partner shall promptly deliver to Boatsetter copies of its insurance policies, insurance

certificates and endorsements showing the requisite coverage, policy limits and the names of all

insured parties.

Pro Partner agrees to waive all rights of subrogation and recovery against Boatsetter,

Boatsetter’s affiliates and Boatsetter’s insurers for loss or damage to the vessels and / or any

personal injury (including death) caused by or arising out of the charter and use of the vessels

and / or under this Agreement.

5. Liability. ​Pro Partner shall be solely liable for any and all claims of any kind arising out of or

related to this Agreement and the use of the Service and /or Pro Partner’s vessel(s), howsoever

caused including (1) claims within the deductible of the insurance policies required above, (2)

liability for covered claims in excess of the limits of said policies, (3) claims for personal injury or

death by or on behalf of paid crew whether brought pursuant to the Jones Act, General Maritime

Law, Unseaworthiness, Vessel Owner Negligence, Maintenance and Cure or otherwise, and (4) all

claims which are not covered by the above referenced policies.

6. Indemnification. Pro Partner shall indemnify, defend, and hold Boatsetter harmless against any

and all claims, demands, liabilities, suits, or expenses arising out of, or related to this Agreement

or in connection with any vessel charter services provided by Pro Partner pursuant to this

Agreement which are not covered by the insurance provided above for any reason, including

claims which are below the deductible for such coverage, or which are in excess of the policy

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limits of such policies. Pro Partner shall also indemnify, defend, and hold Boatsetter harmless

from all costs and attorneys' fees incurred in defending against such claims or enforcing this

indemnification provision. Pro Partner shall promptly notify Boatsetter of any claim or legal

action against Pro Partner or Boatsetter. This paragraph shall be liberally construed in favor of

Boatsetter and shall survive the termination of this Agreement.

7. Pro Partner Representations and Warranties. Pro Partner represents and warrants that, at all

times while participating in the Service, Pro Partner’s vessel[s] will: be in a safe and seaworthy

condition; contain all equipment required under applicable law; and comply with all other legal

requirements applicable to the vessel[s], including insurance requirements, Coast Guard

regulations, zoning laws, marina regulations, manning, and vessel livery requirements of the

jurisdiction(s) in which Pro Partner will be providing vessels. If Boatsetter believes that a Pro

Partner’s vessel does not conform to these standards, Boatsetter will notify Pro Partner and also

reserves the right to refrain from listing the vessel through the Service until the concerns have

been resolved to the satisfaction of Boatsetter at its sole discretion. The foregoing

notwithstanding, Boatsetter shall have no affirmative obligation to conduct any

inspections, investigations or surveys to determine the seaworthiness or condition of any

vessel, the competency of any captain or crew, and or the sufficiency of any equipment or

facilities of the Pro Partner or its vessel(s).

8. Pro Partner Content Transmitted Through the Service​. With respect to the content or other

materials that Pro Partner approves or uploads through the Service or shares with participants in

the Boatsetter Program (collectively, “User Content”), Pro Partner represents and warrants that

Pro Partner owns all right, title and interest in and to the User Content, including all copyright

and rights of publicity contained therein. By uploading User Content, Pro Partner hereby grants

Boatsetter and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up,

transferable, sub-licensable, perpetual, irrevocable license to copy, display, upload, perform,

distribute, store, modify and otherwise use Pro Partner’s User Content in connection with the

operation of the Service or the promotion, advertising or marketing of the Boatsetter Program, in

any form, medium or technology now known or later developed.

● Pro Partner acknowledges and agrees that Boatsetter may use any and all available Pro

Partner User Content including but not limited to photos and text from Pro Partner’s

website, social media, electronic and hard copy brochures and marketing materials, etc. in

the Boatsetter Program and to generate vessel Profiles on behalf of the Pro Partner.

▪ Pro Partner acknowledges and agrees that any questions, comments, suggestions, ideas,

feedback or other information about the Service (“Submissions”), provided by Pro Partner to

Boatsetter are non-confidential and Boatsetter will be entitled to the unrestricted use and

dissemination of these Submissions for any purpose, commercial or otherwise, without

acknowledgment or compensation to you.

▪ Pro Partner acknowledges and agrees that Boatsetter may preserve content and may also

disclose content if required to do so by law or in the good faith belief that such preservation

or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or

government requests; (b) enforce this Agreement; (c) respond to claims that any content

violates the rights of third parties; or (d) protect the rights, property, or personal safety of

Boatsetter, its users and the public. Pro Partner understands that the technical processing

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and transmission of the Service, including Pro Partner’s content, may involve transmissions

over various networks and changes to conform and adapt to technical requirements of

connecting networks or devices.

9. Use of Boatsetter Name. Pro Partner may identify its location with Boatsetter approved

temporary signs using the words “BOATSETTER Pro Partner” or other brief identifying marks for

the sole purpose of notifying customers that Pro Partner will service the Boatsetter Reservation

Requests made under the terms of this Agreement. Pro Partner shall gain no additional rights in

the name “Boatsetter,” or the Boatsetter Marks. On the expiration or termination of this

Agreement, Pro Partner shall immediately cease all use of the “Boatsetter” name and Boatsetter

Marks. If Pro Partner uses the “Boatsetter” name or Boatsetter Marks after expiration or

termination of this Agreement, Pro Partner shall pay Boatsetter the sum of $1,000 (U.S.) per day

for each day during which the “Boatsetter” name or Boatsetter Marks are used.

10. Charter Agreements. Pro Partner shall have sole responsibility for compliance with all local,

state and federal laws regarding its charter agreement, operation and business forms.

11. Term and Renewal. This Agreement shall begin on the Effective Date the Pro Partner accepts

the terms herein by registering as a user on Boatsetter.com and shall continue for one year

thereafter. This Agreement shall not be renewed without the prior written consent of Boatsetter.

12. Reservations. Pro Partner shall use its best efforts to honor all Boatsetter Reservation Requests

made pursuant to this Agreement. If a suitable vessel is not available to a Boatsetter Program

customer with a Boatsetter Reservation Request, Pro Partner must notify Boatsetter within 24

hours of the Boatsetter Reservation Request being received.

13. Reporting. Pro Partner shall send Boatsetter an email within 24 hours after the completion of

each charter completed pursuant to a Boatsetter Reservation Request (“Boatsetter Charter(s)”).

This email will contain the actual dates sailed, vessel, boater name and contact, and captain

information (if any).

14. Referral fee. Pro Partner will pay Boatsetter a referral fee that is a percentage of the gross

amounts collected by Pro Partner from Boatsetter Program participants in connection with

services provided by Pro Partner pursuant to this Agreement (“Revenue”) as follows:

Boatsetter: up to 20 % of revenue (“Boatsetter Share”), as agreed in writing between a

Boatsetter and Pro Partner. Email will suffice as “in writing”. The agreed-upon

percentage will be visible and verifiable in the Pro Partner’s profile on Boatsetter.com

15. Payment of Boatsetter Share. No later than the 30th of each calendar month, Pro Partner will

pay Boatsetter the Boatsetter Share of Revenue received during the preceding calendar month.

Pro Partner will provide a monthly log of Boatsetter Charters completed pursuant to Boatsetter

Reservation Requests including: dates, vessel, boater name and contact, rental fee and all other

costs paid by customer (itemized), and total monthly Revenue. Each Party is fully responsible for

payment of all taxes relating to or arising out of its receipt of Revenue under this Agreement.

16. Termination. Either party may terminate this Agreement on 30 days’ written notice to the

other. In the event of termination the Pro Partner shall within 30 days of receipt or issuance of

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notice of termination provide to Boatsetter a log of all Boatsetter Charters completed pursuant to

this Agreement including: dates, vessel, boater name and contact, rental fee and all other costs

paid by customer (itemized), and Revenue and pay to Boatsetter any unpaid Boatsetter Share of

Revenue.

17. Assignment. This Agreement may be assigned by Boatsetter to any affiliate controlled by, or

under common control with Boatsetter. This Agreement may not be assigned by Pro Partner

without the prior written consent of Boatsetter.

18. Notices. All notices required or permitted under this Agreement shall be in writing and sent as

follows:

● if to Boatsetter then by electronic mail to contact contact@Boatsetter.com;

● if to Pro Partner then by electronic mail at the email address provided by Pro Partner.

19. Limitation of Liability. Notwithstanding anything contained herein to the contrary, the

maximum liability of Boatsetter for direct damages in connection with any claim arising out of or

related to this Agreement shall not exceed the amount paid by Pro Partner to Boatsetter during

the term of this Agreement. In no event shall Boatsetter be liable for consequential damages,

including lost profits or lost income, or indirect, exemplary, special or incidental damages, arising

out of or in connection with this Agreement, even if Boatsetter had been advised of the possibility

of such damages. Pro Partner specifically agrees that Boatsetter shall not be liable for data input

errors, lost data or other data-related claims. Both Parties agree to conduct business pursuant to

this Agreement so as to maintain and increase the goodwill, business, profits and reputation of

both parties, and in accordance with high business morals and ethics, and in a spirit of

cooperation with employees and independent contractors of both Parties.

20. Governing Law and Arbitration. ​Any controversy or claim arising out of or relating to this

Agreement, or breach thereof, shall be governed by the United States General Maritime Law or,

where said law is silent, by the law of the state of California.

Any controversy and claim shall be resolved by binding arbitration in accordance with the rules

of the American Arbitration Association, in San Francisco, California. Said arbitration to be held

before a single arbitrator mutually agreed upon by the parties, or if no agreement, then by an

arbitrator selected pursuant to the rules of the American Arbitration Association. The arbitration

shall be held in San Francisco County. Judgment upon any award reached by the arbitrators may

be entered in any court having jurisdiction thereof. The prevailing party in any dispute arising

out of or related to this Agreement shall be entitled to an award of reasonable attorney’s fees and

costs by the arbitrator.

21. Non-Disclosure. Notwithstanding anything contained herein to the contrary, neither party shall

disclose to any person, company or other entity the terms of this Agreement or any other

confidential information received from the other without the prior written consent of the other

Party hereto, other than to their respective employees, attorneys and financial advisors as

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necessary.

22. Severability​. If any provision of this Agreement is deemed or held to be invalid, illegal or

unenforceable, such invalidity, unenforceability or illegality shall not affect the validity,

enforceability or legality of the remaining provisions of this Agreement and this Agreement will

be deemed to be amended to the extent necessary to make it valid, enforceable and legal, or, if

necessary, this Agreement will be deemed to be amended to delete the invalid, unenforceable or

illegal provision or portion thereof. In the event any provision is deleted or amended, the

remaining provision(s) will remain in full force and effect.

23. Descriptive Headings/Recitals. The descriptive headings on the several sections of this

Agreement are inserted for convenience only. The defined terms in the Recitals above are

incorporated herein as though set forth in full.

24. Entire Agreement. ​This Agreement, including the Boatsetter Terms of Service which are hereby

fully incorporated by reference, constitutes the entire agreement and understanding between the

Parties and supersedes any prior arrangements, understandings or agreements (whether oral or

written) between them relating to the subject-matter of this Agreement.